Four women who are suing the state of Idaho after being denied an abortion will testify Tuesday and Wednesday about their experiences traveling out of state to terminate nonviable pregnancies.
The lawsuit, central to the upcoming trial in Ada County District Court, seeks to clarify medical exemptions to Idaho’s strict anti-abortion laws. The plaintiffs are the Idaho Academy of Family Physicians, two doctors and the four women testifying this week, who learned while they were pregnant that their babies were unlikely to survive.
The lawsuit was filed last year. It argues that the woman suffered “unimaginable tragedy and health risks due to Idaho’s abortion bans,” and that doctors in the state lack sufficient guidance on when they can perform the procedure without risking jail time.
Idaho has two laws restricting abortion: Under the stricter one, it is a felony to terminate a pregnancy at any stage, with limited exceptions, and providers who violate the law face two to five years in prison. A second law allows private citizens to sue health care providers who perform abortions after six weeks of pregnancy. Neither policy makes an exception for fatal fetal anomalies.which is the central issue of the lawsuit.
“We’re not trying to tell Idaho how to write its laws. We’re just saying the laws as written don’t work,” said Nick Kabat, an attorney with the Center for Reproductive Rights who represents the plaintiffs.
Idaho Governor Brad Little and the state’s Attorney General Raul Labrador are defendants in the lawsuit. Labrador’s office declined to comment and Little’s office did not respond to requests for comment.
The case of Idaho is similar to that of Zurawski v. Texas, a lawsuit the Center for Reproductive Rights filed last year. In May, the Texas Supreme Court ruled against the 20 plaintiffs, who were denied an abortion in the state despite dangerous pregnancy complications.
Kabat said he is optimistic about getting a different outcome this time, because “in Texas, we couldn’t go to trial.”
Rebecca Vincen-Brown, a plaintiff who lives in Ada County, Idaho, said she has similar hopes.
Vincen-Brown learned last year, at 16 weeks pregnant, that her baby had several abnormalities, including an affected airway, a missing bladder, and a heart and brain that had not developed properly. DNA testing later revealed that the fetus had a rare chromosomal condition called triploidy. Her doctor told her that the pregnancy was not viable and that she would likely suffer a miscarriage or stillbirth.
“There was no way we were going to have a live baby in the end,” Vincen-Brown said.
She and her husband decided to terminate the pregnancy at 17 weeks to avoid endangering her health or fertility. Since that wasn’t allowed in Idaho, they drove seven hours to Portland, Oregon. After the first day of the two-day procedure, Vincen-Brown delivered the fetus in the hotel bathroom around 4 a.m., with her 2-year-old daughter in the other room.
“Deciding to have an abortion was probably the most difficult decision of our lives, but the trauma that came with it when we went to Portland was completely unnecessary and could have been 100% avoided,” he noted.
The lawsuit alleges that Idaho laws violate pregnant women’s rights to safety and equal protection, as well as doctors’ rights to practice medicine under the state constitution. It asks the court to declare that Idaho doctors can provide abortion care in three specific scenarios:
- A pregnant person has a medical complication that makes it unsafe to continue a pregnancy or poses a risk of infection or bleeding.
- A pregnant person has an underlying medical condition that worsens with pregnancy, cannot be treated effectively, or requires recurrent invasive intervention.
- A fetus is unlikely to survive pregnancy or childbirth.
The trial comes shortly after an election in which abortion was a key issue and seven states passed measures to protect it, including two (Missouri and Arizona) that repealed existing bans. The case is one of many ongoing legal challenges to abortion bans. The Wisconsin Supreme Court heard arguments Monday on whether the state can enforce an 1849 abortion ban.
In April, the U.S. Supreme Court heard arguments in another case challenging Idaho’s complete abortion ban: That lawsuit alleged that the state law violated federal policy requiring certain standards for emergency care. Judges dismissed the case in June and sent it back to an appeals court.
Idaho’s two abortion bans went into effect in August 2022, about two months after the Supreme Court overturned Roe v. Wade. The state’s six-week restriction makes exceptions in cases of rape, incest and to save the life of a pregnant woman or prevent “a substantial and irreversible impairment of a major bodily function.” Meanwhile, the total ban makes exceptions for doctors who decide that an abortion is necessary to save a pregnant woman’s life and for cases of rape and incest. However, abortions in these cases must be completed in the first quarter and the pregnant person must report the incident to law enforcement.
Another Idaho law makes it a crime to help a pregnant minor travel out of state for an abortion, but a federal judge has temporarily blocked it.
At this week’s trial, Kabat said his legal team intends to argue that Idaho’s abortion bans will lead to deaths if the exceptions are not made more clear. However, it is almost impossible to track those deaths because the state refused to renew its Maternal Mortality Review Committeewhich investigated pregnancy-related deaths, so it expired in July 2023.
“Someone may have died in Idaho, but there was no one there to really evaluate that death,” Kabat added.
